Author 




Title 



Class -!-!»— AJ^-i- 
Book *.(^.3.5 



Imprint 



CORRESPONDENCE. 



i5ETWEE.V 



GOVERXOR BROWN 



AND THE 



®:Eio:o.ii2'!i?..i^^i."S" OIF" •"^7V.(^^s., 



rrOX TKE RIGHT OF 



THE GEORGIA VOLUNTEERS, 



IN CONFEDERATE SERVICE, 



TO ELECT THEIR OWN OFFICERS. 



tt 



BODGHTON, NISBET, BARNES & MOORE, State Printehs, 

JIILLEDGEVILLE, GA,, 

1863. 



J:JlJi 



E.5-5 7 
. / 



CORRESPONDENCE. 



Executive Department, ) 

Milledgeville, Georgia, May 30th, 1863. j, 

Hon. James A. SedJon, Secretary of War : 

Dear Sir : — Complaint is made to me that the gallant 
5l8t Regiment of Georgia volunteers, which covered itself 
with so much glory in the late battle of Chancellorville, 
and whose gallant Colonel fell mortally wounded and died 
of his wounds next day, has been denied the right to elect 
a Colonel to fill the vacancy of the lamented Col. Slaughter, 
and that the General in command has appointed a Colonel 
by •promotion. 

This is one of the Regiments sent into service by me, 
under the requisition made upon me in February, 1862, for 
twelve Regiments, and lam at a loss to know why the 
General in command should have refused to allow the Reg- 
iment to exercise its plain constitutional right of election. 
I have understood this question to be settled in favor of the 
right of all State Regiments, organized as the 51st was, to 
elect their own officers to fill all vacancies which have or 
may occur. Indeed, the right of election is too plain to be 
([uestioned. I am daily commissioning the officers elected 
by other Georgia Regiments in like cases, to fill vacancies, 
and I am at a loss to understand why the right should be 
withheld from the -51st, which is allowed to others, and to 
which all are .unquestionably entitled. 

I have advised the Regiment that it is their right to elect, 
and have directed them to hold an election and send the re- 
turns to the Adjutant & Inspector General of this State, 
when I will order a commission to issue to the person elec- 
ted. I have stated to them, that this right is allowed to 
others, and that they are entitled to it, and that I doubt 
not, you will recognize the person elected as the Colonel of 
the Regiment. 

I trust you will at ones instruct the General command- 
ing to permit the Regiment to exercise its right of election, 
and recognize their officers when elected and commissioned 
by the proper authority in this State. 

I wnli be greatly obliged by an early reply. 
I am, very respectfully, 
Your ob't servant, 

JOSEPH E. BROWN. 



4 

Confederate States of America, y 

War Departme7it, > 

Richmond, Va., June 26th, 1563. ) 

To Gov. J. E. Broioi, M'tllcdgcvillc, Go. : 

Sir; — Your commivnication of the 30th May last has 
been received, and the consideration given to it required as 
well by the serious consequences of the claim of a right to 
fill the-vacanpy occasioned by the death of the lamented 
Col. Slaughter, of the 51st Ga. Reg't, by election, as of the 
earnestness and confidence with which the claim is presen- 
ted. * 

It appears from the muster rolls filed in the office of the 
Adjutant & Inspector General, that the olst Ga. Reg't was 
mustered directly into the Confederate service on the 4th of 
March, 1862, for three years or tlie war. 

The Regiment was raised under the act of January 23d, 
1862, which authorized the President to call upon the several 
States for troops to serve for three years or the war, and a 
circular on the subject from the War Department of Feb. 
2d, 1862, was addressed to the several Governors. 

By the lOfch section of the act of April 16th, 1862, com- 
monly known as the conscription act, it is provided that all 
vacancies shall be filled by the President from the company, 
battalion, squadron, or regiment in which such vacancy 
shall occur, by promotion according to seniority, &c., &c. 
This provision was supposed to apply only to the troops re- 
ferred to in that act. 

But, as if intending to put the question at rest on this 
point. Congress, five days after, to-wit : on the 21st April, 
1 862, passed a general act, providing that all vacancies 
shall be filled by the President, &c.., &c., by promotion ac- 
cording to seniority, &c. It seems to me, therefore, that in 
accordance with the last act, all vacancies in volunteer or- 
ganizations are to be filled by promotion according to seni- 
ority, &c., and that the vacancy referred to in the 51st Ga. 
Reg't should be so filled, and not by election. 

The laws and regulations provide for a stringent investi- 
gation as to the fitness of an officer for the promotion to 
which he would be entitled by seniority, if worthy ; and, 
as you state, that such promotion has boon made of the offi- 
cer entitled by seniority, it is presumed that he is worthy* 
to fill the place. 

The act of the General announcing the promotion is in 
accordance with the laws of Congress, with the regulations 
and uniform usage of the service, and is approved by the 
Department. 

It is to be regretted that this difference of opinion should 
have existed, and that the expression of your views should 
have been given such direction as may possibly excite some 
dissatisfaction among the officers of that gallant Regiment 



It is hoped that upon a reconsideration, you will concur 
with the views herein expressed. 

With esteem, respectfully yours, 

JAMES A. SEDDON, 

Secretary of War. 



Marietta, Ga., July 10th, 1S63. 
Hon. James A. Scthhn, Secretary of War: 

Dear Sir : — I have the honor to acknowledge the re- 
ceipt of your letter of 2Gth June last, in reply to my letter 
claiming for the gallant 51su Georgia Regiment the right to 
elect an officer to till the vacancy of the late Colonel Slaugh- 
ter, who was killed in battle, and whose vacancy has been 
filled by the General in command, by promotion, denying to 
the regiment the right of election. This action I consider 
in palpable violation of the plain constitutional rights of 
the Regiment, and while I thank you for the courtesy of 
your reply, I must express both my surprise and mortifica- 
tion at your denial of the right of election to this Regi- 
ment and others which entered the service as it did ; and 
your announcement that the conduct of the General in re- 
fusing to permit the Regiment to exercise this right, and 
assigning to it a commander by promotion, without regard 
to the wishes of the troops, "is approved by the Depart- 
ment." 

You predicate this decision upon the act of Congress 
known as the Conscription Act and a subsequent act which 
provides that "all vacancies shall be filled by the President," 
I predicate my objection to the decision upon the Constitu- 
tion of the Confederate States, which is of higher authority 
than any act of Congress, and hold that the acts referred to 
by you, so for as they deny to the State of Georgia the 
right to fill this and all similar vacancies, are in conflict 
with the Constitution, and therefore void and of no binding 
force. 

The IGth paragraph of the Sth section of the 1st article 
of the Constitution of the Confederate States declares, that 
Congress shall have power "to provide for organizing, arm- 
ing and disciplining the militia, and for governing such 'part 
of them as maxj he emyloycd in the service of the Confederate 
States, RESERVING TO THE StATES RESPECTIVELY TIJE AP- 
POINTMENT OF OFFICERS, and the authority of training the 
militia according to the discipline prescribed by Congress." 

By this paragraph of the Constitution, the State of Geor- 
gia, in plain language, reserved to herself the ajyjmntjnejit of^ 
the officers to command any part of her militia, when emp- 
ploi/ed in the service of the Confederate States. And by her 
own Constitution and laws, she has provided that such ap- 



^ointment shall be made by election of those to be commanded 
by these officers, and commission from the G-overnor, and 
that vacancies shall be fillecl. in the same manner. 

By the militia, I understand the Constitution to mean the 
whole arms-bearing population of the State, who are not 
enlisted in the regular armies of the Confederacy. I am 
aware that writers upon English law define the militia to 
be an organized hody of troops, &c. 

That the framers of the Constitution did not intend to 
use the term in this sense, is evident from the fact, that 
they speak of the militia as in existence at the time they 
are making the Constitution, and give Congress the power, 
not to make a new- militia, nor to organize that already in 
in existence, but to i^rovide for organizing the militia. In 
other words, to provide for forming into military organiza- 
tions the arms-bearing people of the respective States. 
Had the Constitution given Congress the power to organize 
the militia without the qualifying words, it would have had 
the power to appoint the officers to command them, or to 
authorize the President to appoint them, as they cannot be 
organized without officers. The language is, however, very 
guarded. Power is given to Congress to provide iox organiz- 
ing that which v/as then in existence, without elective or- 
ganization, the militia or arms-bearing peopleof the States. 
When Congress has provided for the organization, and the 
States have organized the militia, Congress may authorize 
the President to employ them, or a part of them in the ser- 
vice of the Confederate States, but in that case the States 
expressly reserve to themselves the right to appoint the 
officers to command them, and Congress cannot, without 
usurpation, exercise that power, or confer it upon the Pres- 
ident. 

But suppose I adopt tlie definition of the term militia in- 
sisted upon by those who differ from me. The result is the 
same. In our correspondence upon tho constitutionality of 
the Conscript Act, the President says, "the term militia is 
a collective term, meaning a body of men organized." In 
February, 1862, the President made requisition upon me, 
under the act of Congress of the 23d of January, 1S62, for 
twelve regiments of troops, to be employed in the service 
of the Confederate States. I proceeded under the laws in 
existence at the time to organize the regiments called for. 
The 51st Regiment was tendered as one of the twelve, and, 
with the other eleven and several additional regiments which 
offered their services as volunteers, was accepted by the 
President, as organized and officered by the State. This 
Regiment, v/hen tendered, was therefore an organized hody 
of men, taken indiscriminately from the ariiis-bearing peo- 
ple of the State, who tendered their services and were ac- 
cepted by the President as a body of men organized by the 
State, or as militia, according to his own definition. The 



right ot the State to '(qipoint the officers, which slie does 
upon the ckclion of those to be commanded, was distinctly 
recognized in the organization of the Regiment. If the 
State possessed this right then, how has she lost it since ? 
If it is her right to appoint the officers when the Regiment 
is organized, how does she lose the right when a vacancy u 
to be filled ? 

• But the case docs not rest here, undoubted as were the 
States' rights under the Constitution. Before this Regi- 
ment and others called for at the same tin^e were formed, I 
wrote Mr. Benjamin, the Secretary of War, upon the ques- 
tion, tliat the reserved rights of the State and of her troops 
might be distinctly recognized, to avoid any misunderstand- 
ing in future. 

In his reply of IGth February, 1SG2, after the requisi- 
tion had been made, and before the regiments were organ- 
ized, Mr. Benjamin said, "I will add, that the officers of 
the regiments called for from the State under the recent acfc 
of Congress, are, in my opinion, to be commissioned by the 
Governor ot Georgia, as they are State trooiis tendered to 
the Confederate Government." 

This opinion of the Secretary of War was communica- 
ted to the troops, and they were assured by me that they 
had the right to elect all the field and company officers bj 
whom they were to be commanded, while employed in the 
service of the Confederate States. With this assurance 
from the Secretary of War and the Governor of this State, 
they volunteered and entered the service v/ith the officers 
elected by them. 

Aside from their constitutional right, here was a fair con- 
tract between them and the Government, under which they 
entered its service, and have nobly performed their part ; 
and I deny that Congress possess \s the power, by any sub- 
sequent act, to wrest from them this constitutional rights 
or that the Government, without a'most unjustifiable breach 
of its plighted faith, can now deny to them the exercise of 
this right. I beg to be excused for the use of strong language 
which may appear to show too much zeal on my part in 
this cause. 

By the act of the Secretary of War, I was made a party 
to this contract with the troops', and my action under it was 
ratified by tlie President when he accepted the troops or- 
ganized under it with officers elected by them, and I feel in 
honor bound to exert all the energy and power I possess to 
prevent the injustice which is being done io these gallant, 
self-sacrificing men. If the right is still denied, it will be 
my duty to communicate the facts to the General Assembly 
of this State, when again convened, and to ask ihem to take 
such action in the premises as will secure justice to their 
injured fellow-citizens and constituents, and protect their 
plain constitutional rights. 



You say you regret that "the expression of my views 
should have been given such direction as may probably ex- 
cite some dissatisfaction among the officers of that gallant 
Eegiment." Much as I may regret to excite the dissatis- 
faction of the officers who may be unwilling to submit their 
claims to preferment to a fair vote of those whom they as- 
pire to command, I cannot be silent when the rights of the 
Eegiment in the selection of its officers are no longer re- 
spected. But I cunnot suppose that the dissatisfaction of 
any meritorious officer who treats his men humanely, and 
has shown himself worthy to lead them in battle, will be 
excited, as such an officer has no reason to fear the decision 
of the gallant troops with whom he has been long associa- 
ted, and who are well acquainted with his character and 
his capacity to command them, and protect their lives in 
battle. It can only be those officers whose chief claim to 
preferment rests upon their rank and the date of commis- 
sions acquired by them, when less known to ihe troops, 
whose dissatisfaction can be excited when the troops are in- 
formed that the Executive of their State claims that they 
shall be permitted to exercise what they believe to be their 
constitutional right of election, and v/hat they and their 
officers know was guaranteed to them when they entered 
the service. 

You say, further, that "theact of the General in announc- 
ing the promotion, is in accordance witii the laws of Con- 
gress, with the regulations and uniform usage of the ser- 
vice." I trust I have shown that the act of Congress, so 
far as it confers the right of appointment in this case upon 
the President, is a nulity, on account of its conflict with 
the Constitution, and it follows as a necessary consequence 
that any regulation of your Department carrying into exe- 
cution that which is void, is also unauthoritative. In refer- 
ence to the uniform usage of the service, I can only remark, 
that you labor under ^ very great mistake. I think it safe 
to say that a majority of the whole number of vacancies 
which have occurred in regiments in Confederate service 
from this State, which entered the service as did the 51st, 
under requisition from the President, have been filled by 
election and commission from the State. There has been 
therefore, no wiiform usage in favor of your construction, 
but rather the contrary. 

I am informed that soon after the passage of the conscrip- 
tion act, this question was raised in Colonel Benning's Reg- 
iment, General Toomb's Brigade, and was carried up regu- 
larly to the War Department for decision, and was decided 
in favor of the riglit of the State to appoint the officers to 
fill these vacancies, and against the right of the President 
to fill them by promotion. I am also informed, that a case 
involving this very principle, has been submitted to the 
Attorney General for his opinion, and that his opinion sus- 



9 

tamed the right of aijpointmcnt by the States, in regiments 
tendered and accepted under the requisitioq of the Presi- 
dent upon the State for troops, under the act of Congress 
aforesaid. If I am mistaken in either of these points, I will 
thank you to inform me of the error, and what has been the 
decision of your predecessor, and of the Attorney General 
in cases similar to that now under discussion. Certain it is, 
within my own knowledge, that since the report of the de- 
cision above referred to, most of the Georgia regiments, or- 
ganized as this was, have exercised the right of election, and 
I have commissioned the persons elected, and they now have 
command under their State commissions, and are recog- 
nized by the superior officers as entitled to their rank and 
command. 

In conclusion, I must express my profound regret that 
you have felt it your duty to make a decision in this case, 
which, in my opinion, denies the State the exercise of a right 
expressly reserved by her in the constitution, and which 
does great injustice to the troops, not only because it de- 
prives tliem of a legal right, which they consider of great 
importance to them, but because it violates the express 
gu-aranty of this right, under which they entered the service. 

Amidst the weight of cares and responsibilities by which 
you are surrounded, lam induced to hope that your decision 
was predicated upon the act of Congress, without having 
given that mature reflection to the Constitutional question 
involved in the case, which its imp'ortance demands, and 
that you were not aware of the understanding between me 
and the Secretary of War, which I have mentioned above, 
«.nd upon w^hich the troops acted when they entered the 
service. I therefore most respectfully ask a reconsidera- 
tion ofthis case, and trust I may soon have the pleasure to 
inform the gallant 51st regiment, and all others organized 
as it was, that their right of election, which I consider so 
clear, and tney regard so valuable, is recognized and respect- 
ed by the Confederate Government. 

I am, with great respect, 

your obedient servant, 

JOSEPH E. BROWN. 



Confederate States of America, ^ 

War Department, .> 

Richmond, Va., July 2oth, 1863. ) 

His ExceUenoj Jos. •£. Brown , 

Governor of Georgia : 
Your letter of the 10th inst., has been received. The 
difference between yourself and this Department upon the 
subject of the right of the 51st Georgia Regiment, to elect 



10 

.their officers depends upon the fact whether this regiment 
composes a part of the militia of the State of Gfeorgia. If 
the regiment be a portion of the militia '"employed in the 
servic3of the Confederate States," the appointment of the 
officers is reserved to the State, otherwise, not. The com- 
pany muster rolls of this regiment on fde in the office of 
the Adjutant and Inspector General, are entitled "muster 

Roll of Capt. Company in the 51st Regt. of Geor- . 

gia vols., commanded by Col. Wm. M. Slaughter, called into 
the service of the Confederate States in the Provisional ar- 
my, under the provisions of the act of Congress by Gov. 
Jo?. E. Brown, from the 4th March, 1S62, (date of the mus- 
ter) for the term of three years, unless sooner discharged," 
and the muster corresponds with this title. This shows that 
this Regt. was composed of volunteers who were enlisted 
as a part of the Provisional army of the Confederacy, under 
the supervision of the Governor of Georgia. 

The legislation of the Confederate States will very clear- 
ly exhibit that troops of this description have not been re- 
garded as belonging to the militia. By the act of Feb. 28th, 
1861, to raise Provisional forces for the Confederate States 
of America, the Congress enacted ''that to enable the gov- 
ernment of the Confederate States to maintain its jurisdic- 
tion over all questions of peace and war, and to provide for 
the public defence, the President be, and he is hereby au- 
thorized and directed to assume control of all military oper- 
ations in every State having reference to, or connection with 
questions between said States, or any of them and powers 
foreign to them." The third section of the act is "that the 
President be authorized to receive into the service of the 
government such forces now in the service of said States as 
may be tendered, or who may volunteer by consent of their 
State in such numbers as he may require, &c., &c., &c. 

The 4th section is, that such forces may be received with 
their ofhcers by companies or regiments, and when so re- 
ceived shall form a part of the Provisional army of the 
Confederate States, according to the terms of their enlist- 
ment ; and the President shall appoint, by and with the 
consent of Congress, such general officer or officers for said 
forces as may be necessary for the service. The 5th section 
provides "that said forces when received into the service of 
this government, sh^ll have the same pay and allowances as 
may be provided by law for volunteers entering the 
service, or for the army (regular) of the Confederate States, 
and shall be subject to the same rules and government. 

Your Excellency must perceive that the 51st Georgia 
regiment stands upon exactly the same footing as the troops 
tendered by the States, or volunteering under this act, and 
that this act contains not the slightest intimation that the 
troops received under it were received sls State militia. 



11 

There is a direct provision tliat a portion of the ofHcers 
shall be appointed by the President, 

The act of Congress of the Gth March, iSGl, authorizes 
the President to employ the militia, military and naval for- 
ces of the Confederate States, and to ask for and accept the 
services of any number of volunteers, not to exceed 100,000^ 
Ccc, &c. The .3th section of that act permits the President 
to accept the services of volunteers in companies, squadrons. 
Battalions and regiments, whose officers shall be appointed 
in the manner prescribed by law in the several States, to 
which they shall respectively belong. But when inspected,' 
mustered, and received into the service of the Confederate 
States, said troops shall be regarded in all respects as a part 
of the army of the said Confederate States, according to 
their respective enlistments. 

The President was authorized to organize the companies 
into superior organizations at his discretion, and to appoint 
Brigade and Division officers. It was supposed that these 
volunteers would be raised through the different States, for 
by the act of IJth May 1S(31, he was authorized to receive 
volunteers directly without the formality and delay of a 
call upon the States. In this act there is a broad discrimi- 
nation made between the volunteers and militia, and the 
terms of the act forbid the conclusion that the volunteers 
obtained through the instrumentalities of the States, were 
to be regarded as militia "employed in the service of the 
C/jnfederate States." Tiie act of the 23d Januar}'', 1SG2, 
under which the 51st Georgia Regt. was called into the 
service, has immediate relation to the act of March Gth, 1861» 
The object of the act was to obtain from the States the 
complement of the troops authorized by the act of March 
ISGl, by the apportionment among them and requisition 
upon their public authorities. The conditions upon which 
tlie troops were to enter the service were prescribed in that 
act. These were that "the said troops shall be regarded in 
all respects as a part of the army of the Confederate States, 
according to the terms of their respective enlistments," and 
as before shown, they were mustered into service conform- 
ably to these conditions. Forming as they did, a part of 
the army , of the Confederate States, they became subject 
to the authority of Congress, who were authorized by the 
Constitution "to make rules for the government and regu- 
lation of the land and naval forces." Among J:he rules and 
regulations proper on the subject, are these relating to the 
selection and promotion of officers. 

The act of Congress of March Gth, 1861., provided for the 
organization of the volunteer troops then called for by 
adopting the State regulations. The acts of the 4th session 
of the Provisional Congress (acts of 11th Dec, 22d Jan. 
and 27th January, 1SG2,) provided a rule of promotion in 
regard to a portion of those troops who were about to re- 



■ / ^ 12 

inlist. The acts of the IGtli April 1862 and 21st April 
1862, made a rule applicable to the entire Provisional army, 
and this rule was repeated in the act of 13th Oct. 1862. " 

The Conscription acts of April and October have been 
the source from which the army has been recruited for more 
than fifteen months. It is probable that one half of those 
who now compose the 5Jst Ga. Eegt. have come into it 
through the agency of these aets. This regiment and oth- 
ers accepted under the same conditions are regarded by this 
Department, since their acceptance by the Confederate 
States as a part of the Provisional army, and therefore to be 
recruited by the agency of the Confederate States. The 
rule of promotion prescribed by Congress, is one uniform 
in its operation, was adopted after the experience and ob- 
servation of a year, and clearly embodies the judgment of 
Congress as the mode best calculated to insure the selection 
of competent officers. 

It is unnecessary in this inquiry to undertake a definition 
of what the meaning of the word militia is. Neither th*^ 
acts of Congress of the U. S., prior to the separation of the 
Contederate States, nor the acts of Congress of the Confed- 
erate States, have regarded as militia, volunteers who have 
come into the service of the Federal Union, or the Confed- 
erate service, to form a portion of the army upon which 
they rely for the common defence, and it would be difficult, 
in the opinion of this Department, to assign a meaning to 
the term that would properly embrace such troops. 

The postscript to the letter of Mr. Benjamin of the 16tb 
July, 1861, quoted by you, seems to refer to the original or- 
ganization of the troops prior to their muster, and before 
their acceptance into the Confederate service, and the prac- 
tice since their acceptance, if inconsistent Vv'ith the opinion 
expressed in this letter, was probably a transient or casual 
toleration of an existing opinion, without a full considera- 
tion of the import of the legislation of the Congress of the 
Confederate States. After a careful consideration of that 
legislation I do not feel that I have any authority to dis- 
pense with its conditions, however, agreeable it might be 
to conform to the wishes of those who have maintained this 
opinion. .Notwithstanding my deference to the views of 
your Excellency, I must confine my official actions to what 
I conceive the clear mandate of the laws. 
, ^ ■ With high esteem, 

very respectfully, &c.,. 
(Signed.) JAMES A. SEDDON, 

Sec'y of War. 



13 

Marietta, August 21st, 1863. 

Hon. James A. Scddoji, Secretary of War : 

Dear Sir: — I have to acknowledge the receipt of your 
letter of 2-5th Jul}'', and to express my regret that I have 
been disappointed in what I considered a reasonable expec- 
tation, that upon a review of the question, you would per- 
mit the Georgia troops, to whom our correspondence refers, 
to exercise the right of electing their officers. 

It does not seem to me that the constitutional objection 
which I make to the acts of Congress, which deny to the 
troops the right of election, and give to the President the 
power to appoint the officers to command them, is success- 
fully met, by additional quotations from the acts of Con- 
gress, to show the intention. 1 have not called its inten- 
tion into question, as I think it quite clear that it intended 
to confer the appointing power upon the President, but I 
ha\e called in question its right, under the Constitution to 
do so. With all due deference, I cannot see, how the pow- 
er of Congress to pass a Statute, can be established by 
quotations from a Statute^ showing what Congress did en- 
act, but not what its powers were. 

I cannot admit that the distinction which you attempt 
to draw between volunteers and Militia, has any substan- 
tial foundation in law or fact, or that the length of time 
for which they are called into service, aft'ects the question. 
It is very clear from the letter of the Constitution, that the 
militia of a State, may "be employed in the service of the 
Confederate States," in which case, Congress has power to 
provide for governing them, but even this power is made 
subject to the right of the State, to appoint, the officers to coni- 
•mand them. It matters not what Congress may choose to 
call the arms bearing people of the State, who are in fact 
her militia. AVhen Congress asks the State, to permit the 
President to employ them in the service of the Confederate 
States, and he makes requisition for them, and the State 
organizes and tenders them, they may be called the armies 
of the Confederacy, or the provisional or regular army, or 
by any other name which Congress may adopt, but neither 
their existence, their identity nor their character is changed 
by the name. The arms bearing people of a State, are her 
militia, and when the President, under the authority of the 
act of Congress, makes requisition upon the Governor of 
a State for them, to repel an invasion, and they are tender- 
ed as organized and officered by the State, and accepted 
with their State officers and State organization, they are 
without regard to the term used by Congress to designate 
them, the militia of the State, "employed in the service of 
the Confederate States." Nor does the fact, that the State 
tenders them as drafted men, , or as volunteers, or for a 
longer or shorter time, affect their character or their identi- 



14 

ty. Suppose a State is invaded, or there is a sudden insur- 
rection, and the President, by virtue of an act of Congress, 
requires the Governor to call out the whole militia of a 
State for ten days, to repel ttie invasion, or suppress the in- 
surrection, and every man in the State volunteers, does the 
fact that they are not drafted, but volunteer, destroy their 
character of militia, and convert the whole militia of the 
State, into an army of the Confederacy, and thereby give 
the President the power to appoint all the officers, and 
take from the State this right which she has carefully re- 
served in the Constitution? If not, how is the principle 
changed, in case the call is for one month, one year, or 
three years, instead of ten days? When thus tendered by 
the State, for what length of time must they "be employed 
in the service ot the Confederate States," before they lose 
their character of militia of the State? and how long must 
they serve before the President may, without usurpation, 
deny to the State, her reserved right to appoint the officers, 
and assume to do it himself? ■ Must it be for one month, 
one year, two years, three years, or wliat other period ? 

Under the act of Congress, the President called on me, 
as Governor of this State, for troops to serve for twelve 
months. They were furnished, and the titates' right to ap- 
point the officers to fill all vacancies was never ques- 
tioned. 

Other calls were made for troops to serve for three years. 
These were promptly responded to, and among others, the 
51st Regiment was tendered and accepted, and the right of 
the State to appoint the officers, expressly admitted upon 
the record, with no qualification and no denial of her right 
to' fill vacancies. Again, the Presidenr, has lately, through 
you, made requisitions upon me for 8;000 troops for six 
months, for home defence, to be used in case of emergency, 
and in repelling raids, &c. These men are expected to be. 
most of their time, at home, attending to their ordinary 
business of producing supplies, &c. But the act of Con- 
gress says, where they volunteer and are accepted, they 
shall form part of the provisional armies of the Confeder- 
ate States. It will take nearly all the men remaining in 
the State, between 18 and 45, to fill this last requisition. 
Part of them will be volunteers, and part drafted men. 

Now, if all these six months men, twelve months men, 
and three years men, have been converted into armies of 
the Confederate States, in the sense in which the constitu- 
tion uses the term, (I do not mean the sense in which Con- 
gress uses it,) and no part of them are militia, "employed 
in the service of the Confederate States," what has become 
of the militia of Georgia? Nearly the whole arms-bearing 
people of the State, between IS and 45, are in the service 
of the Confederate States, the larger number of them or- 
ganized by the State and tendered to, and accepted by the 



15 

Confederate Government, with their officers appointed by 
the State, and you now deny that any part of the militia 
of Georgia are "employed in the service of the Confederate 
States," or that the State has the right to appoint a single 
officer to command them. 

Again, I ask, how did Georgia get rid of her militia, and 
where are they? They are, in fact, all employed in the 
service of the Confederate States. She has expressly and . 
carefully reserved the right, when they are thus employed, 
to appoint all the officers to command them. You do now, 
so employ them, but you deny her right to appoint everi 
one'of the lowest officers who is to command them, and 
you justify this by quoting from the acts of Congress to 
show, not the 'power to take from the State this plain con- 
stitutional right, but, that it was its intention to do it. I 
have never denied the intention, but I can never admit the 
power. I look upon it as a clear usurpation, which finds 
no jurisdiction, either in the Constitution, or in the plea of 
necessity, which is usually resorted to in such cases. 

In my last letter, I referred to the opinions of your pre- 
decessors in office, and of the Attorney General, which are 
all reported to concur in the view I take of this question, 
and requested you to correct the error, if I had fallen into 
one, and to inform me what had been their ruling upon this 
point. As ypur reply passes this part of my letter in si- 
lence, I understand the fact to be admitted, that I am fully 
sustained in the view I take of the rights of the State, by 
the opinion of the Attorney General and the opinions and 
practice of the different distinguished gentlemen, who have 
successively filled the position you now occupy. I deeply 
regret that you have felt it your duty to overrule the opin- 
ions of sucli able and distinguished statesmen, as those just 
mentioned, upon a question involving a principle so vital to 
the rights and sovereignty of the States, when the de- 
nial of the rights of the States can only increase the 
power and patronage of the President, but cannot for 
the reasons given in my former letter, result in prac 
tical benefit to the public service. If your process of 
reasoning be correct, that the right of the States to ap- 
point the officers no longer exists, when it can be shown by 
reference to the acts of Congress, that it intended to con- 
fer this power upon the President, then the Constitution is 
of no binding force, and Congress has power, by the use of 
a term, or the change of a name, to abrogate the most sa- 
cred rights of the States, and confer them all upon the 
President. 

In reply to that part of your letter in which you state 
that the 5 1st Georgia Regiment, has been recruited under 
the conscript act, and that probably, one half of its present 
number, have been in that way added to it, I need only re- 
mark, that if it is the right of the State to appoint the offi- 



y. 



30 . . 

cers to fill vacancies in the regiment, by commissioning 
those elected by the troops, the President, can certainly 
have no legal power to deprive the State of this right, or 
the men who originally formed the regiment, of the right 
of election, by adding conscripts to the regiment. If he 
chooses to put them in a regiment of volunteers, which has 
the right of election, he should not interfere with this right, 
but should permit all to vote. 

But I need not trouble you with further remarks, as I 
perceive your decision is made up, doubtless after confer- 
ing with the President, and it is determined that you shall 
enforce your construction. The President has the power 
in his OAvn hands, and I am obliged for the present, reluc- 
tantly to acquiesce in, what I consider a great wrong, to 
thousands oi' gallant Gl-eorgia troops and a palpable infring- 
menz of the rights and the sovereignty of the State. 

I will only add, that this letter 'is intended more as a j?;-o- 
:c!it against your decision, than as an effort to protract a dis- 
cussion, which it seems, can be productive of no practical 
results. I am, dear sir, 

Very respectfully, 

Your ob't servant, 

JOSEPH E. BROWN. 



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